Cato Institute on Civil Rights

Balance freedom of association against discrimination

The gay-rights movement is turning from same-sex marriage to the next item on its agenda: outlawing discrimination based on sexual orientation. That is where many libertarians who strongly supported same-sex marriage step back for a more measured
approach.

The law here is unsettled, especially as the right to the free exercise of religion is pitted against the right to be free from discrimination. For example: a Christian couple who own a small farm open to the public for seasonal activities
were fined $13,000 for declining to host a same-sex wedding.

Freedom of association--the simple idea that people are free to associate, or not, as they wish--certainly isn't what it once was. Under common law, if you represented your business as "open
to the public," you had to honor that, with exceptions for unruly customers. These rules left ample room for freedom of association, albeit with serious exceptions like Jim Crow, the deplorable state-sanctioned discrimination enforced by government.

VAWA unconstitutional: violence against women isn't federal

The Supreme Court should not uphold the Violence Against Women Act. In passing the act, Congress exceeded its constitutional authority. VAWA creates a federal private cause of action against anyone "who commits a crime of violence motivated by gender."
It is, in effect, a federal tort statute. And therein lies the problem: Where in the Constitution does Congress find authority to enact such legislation?

Supporters point to two sources: Congress's power "to regulate commerce" and the Equal Protection
Clause of the 14th Amendment. Not so, said a district court (reversed by an Appeals Court). The act does not regulate commerce. And the 14th Amendment protects against state violations, not against private acts.

Violence against women is a national problem. But that does not make it, under the Constitution, a federal problem. Congress's power to regulate commerce is not a power to regulate everything.

Anti-gay bullying school rules stifles free speech.

Huffington opposes Student Non-Discrimination Act

Congressional Summary:

Prohibits public school students from being excluded from participating in, or subject to discrimination under, any federally-assisted educational program on the basis of their actual or perceived sexual orientation or gender identity or that of their associates.

Considers harassment to be a form of discrimination.

Prohibits retaliation against anyone for opposing conduct made unlawful under this Act.

Authorizes federal departments and agencies to enforce these prohibitions by cutting off the educational assistance of recipients found to be violating them.

Allows an aggrieved individual to assert a violation of this Act in a judicial proceeding and recover reasonable attorney's fees should they prevail.

Opponent's argument against bill:(by Cato Institute reported on Fox News): A bill in Congress that would prohibit discrimination in public schools based on sexual orientation or gender identity could
stifle free speech and even lead to "homosexual indoctrination" in the nation's classrooms, critics say.

"The real danger is how this will be interpreted," said the associate director of the Center for Educational Freedom at the Cato Institute. "The definition of harassment could be broadly interpreted that anybody who expressed a totally legitimate opinion about homosexual behavior could be made illegal. That's a violation of those kids who want to express opposition to LGBT opinions or behavior. People have a legitimate reason to be concerned about this--not because they're 'haters' but because you're now trying to balance different rights."

Proponent's argument for bill: (Rep. Jared POLIS, House sponsor): "Hatred has no place in the classroom. Every student has the right to an education free from harassment and violence. This bill will protect the freedoms of our students and enshrine the values of equality and opportunity in the classroom."